Correspondence (5 documents) regarding SWFWMD's "Works of the District" and the extent of its jurisdiction, impact on the Sarval Development, "Ordinary-High Water" v. "Mean-Annual Flood," and permit requirements

Physical Description:

11p.

Language:

English

Publication Date:

1973, 1977, and 1979

Subjects

Spatial Coverage:

North America -- United States of America -- Florida

Notes

General Note:

Box 5, Folder 11 ( SF MEAN ANNUAL FLOOD ), Item 1

Funding:

Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

I am concerned that your letter may create some confusion as to
the extent of jurisdiction of SWFWMD.

I discussed this briefly before the Governing Board yesterday
and, while we have not completed our research, it is our
opinion that the threshold of jurisdiction for SWFWMD, insofar
as it relates to a work of the District, is bounded by the line
separating District property from non-District property, or
by the line separating the riparian owner's upland from the
public's bottomland, whichever is appropriate.

The line separating District property from non-District property
is easy to ascertain and therefore will not be discussed further
in this letter.

Your letter to Jack Campo states that a developer will be required
to have a permit for construction in the flood plain of a work of
the District. Your letter gives the impression that Southwest
Florida Water Management District has jurisdiction if the develop-
ment proposed connects with and encroaches upon the mean annual
flood plain. This is incorrect.

On September 1, 1977 I wrote you a letter re: "ordinary high
water" v. "mean annual flood" in which I explained the boundary
which separates uplands from submerged lands of streams and
lakes. In reviewing this letter I acknowledge that perhaps it
is not as clear as it could or should be. However, a copy is
attached.

I want to reiterate that the extent of SWFWMD jurisdiction over
works of the District is the line which separates the riparian
owners upland from the public's bottomland which, in Florida,
has been determined to be the ordinary high water mark, not the
line of the mean annual flood.

Mr. J. B. Butl( Director
January 4, 1979
Page Two

Once that threshold of jurisdiction has been met, it is our
opinion that the District can assert its regulatory authority
beyond that boundary line, so long as such a regulatory
authority is consistent with carrying out the works of the
District and for effectuating the purposes of Chapter 373
as set forth more specifically in Section 373.016, F.S.

In the past, the District has stated that a permit is required
"for all types of work below the ordinary high water level of
a lake or stream which is a work of the District." The District
has explained that for easy reference, the District uses the mean
annual flood as being equivalent to the ordinary high water level.
Prior to adoption of rules pursuant to the Water Resources Act
of 1972 the District advised applicants that present policy was
"to prohibit the placement of fill or dwelling structures within
the area of the ordinary high water." See letter of August 31,
1973, attached.

The statements set forth in this letter are based on
considerable research over a long period of time commencing
in 1961, shortly after the District was formed. I believe
that the first works of the District were adopted by
Resolution No. 63, dated October 9, 1963. There have been
no amendments to the statutes or developments in case law
which alter our opinion that the ordinary high water mark is
the boundary which must be utilized in ascertaining whether
or not the permit may be required by SWFWMD pursuant to Part I
of Chapter 16J, F. A. C.

I am attaching a recent memorandum which sets forth, in part,
the legal basis for our opinion.

Accordingly, I urge you to utilize the phraseology set forth
in the letter of August 31, 1973 in any future correspondence
you may have relating to jurisdictional authority insofar as it
relates to works of the District.

Mr. Jack Campo 0 T19
2003 Pan Am Circle JI
Tampa, FL
Pe: Proposed Sarval Development
Dear Jack:
This will confirm our telecon of Thursday, December 21, 1978, during which I
reported to you the following:
1. That by analysis of our aerial photography and delineated flood mapping
for northwest Hillsborough County and your preliminary plan for the Sarval
development, the District staff has determined that the development proposed
does connect with and encroach upon the mean annual flood plain of the south
branch of the Anclote River, a "Work ofthe District". If this preliminary
assessment is correct, then it is apparent that the developer will require
a permit for construction in the flood plain of-a "Work of the District".
You are further advised that in accordance with the Rules, construction of
structures that are not related to water management purposes may be prohibi-
ted by the Board, and that by virtue of connecting with the mean annual flood
14ain, the developer may incur jurisdiction for certain purposes of Distrc
"Rules up to the twenty-five year flood plain. For your information, a copy
of Part I of the District's Rules and Regulations are enclosed.
2. That upo.; request of the Northwest Hillsborough Basin Board, presenta-
tion of the above material was made in their meeting of December 21, 1978,
and thereafter, the Board unanimously approved a resolution requesting the
District Governing Board and District staff to proceed to invoke the full
jurisdiction of District Rules and Regulations for water management purposes
in the Northwest Hillsborough Basin. The resolution will be forwarded to
the District Governing Board and the staff report made on this subject at
the Governing Board meeting of this date on January 3, 1979.
In closing, this is to request that you advise the developer not to proceed with
any construction or physical alterations of this proposed development site until
a permit has been secured from the District or a finding has been made that the
final proposed development does not connect to or encroach upon the mean annual
flood plain of a "Work of the District".
Sincerte;^% r

On numerous occasions, you have asked to see something in
writing setting forth the boundary which separates uplands
from submerged lands of streams and lakes.

The terms discussed, "ordinary high-water mark" and "mean-
annual flood," should not be confused with the terms
"mean-high water" or "mean-high tide" which relate to tidal
boundaries as opposed to boundaries of streams and lakes.

By the authority of Section 253.12(1), Florida Statutes,
the state is vested with title to the land underlying all
navigable streams, lakes and rivers. This land is deemed
to be public property and, although rights to use this
property may be given, title cannot be granted away.
Holland v. Ft. Pierce Financing & Construction Co., 157
Fla. 649, 27 So. 2d 26 (1946).

Florida case law states that the bed of a stream is that
"land below the ordinary high-water mark." United States v.
Ray, 423 F. 2d 17 (C.A. Fla. .1970) at 20.

The definition of "high-water mark" was first articulated by
the Supreme Court of Florida in Tilden v. Smith, 94 Fla. 402,
113 So. 708 (1927). The Court adopted a definition from
Minnesota stating:

"[the] high-water mark ., a line between a
riparian owner and the public, is to be
determined by examining beds and banks, and
ascertaining 4^here the presence and action of
the water are so common and usual, and so long
continued in all ordinary years, as to mark

"The high-water mark on fresh-water rivers is
not the highest point to which the stream rises
in times of freshets, but is the 'line which the
river impressed upon the soil by covering it for.'
sufficient periods to deprive it of vegetation and
destroy its value for agriculture.'"

From these descriptions it can be seen that the high-water
mark is a product of a constant, sustained flow. It results
from the regular and continuous action of the stream; it is
not the line reached by the water at flood stages, nor is it
the line ordinarily reached by annual swellings of the
stream, possibly caused by a wet season. (See also, Maloney,
Water Law and Administration, University of Florida Press,
1968, pp. 68-72.)

The definition of the "ordinary high-water mark" is quite
different from the definition of the "mean-annual flood."
However, before diving into the mean-annual flood, it might
be well to keep in mind the common definition of "flood,"
and "flood waters." These terms are defined as "waters above
the highest line to the ordinary flow of the stream." 34 Fla.
Jur.'Waters and Watercourses, 53.

As you know, the "mean-annual flood" is defined as "the flood
having a recurrence interval of 2.33 years." U.S. Geological
Survey Water Supply Paper 1543-A at 5. The recurrence interval
is equal to the "average interval of time within which a flood
of a given magnitude will be equaled or exceeded once." Id. at 5.
You also know that the mean-annual flood is found by measuring
and recording the annual floods of a particular watercourse
over a given interval of time and this data is then weighed
against known topographic features and a curve is constructed.

The U.S.G.S. paper points out that the study has indicated
that twelve years of record are required to define the "mean-
annual flood" within 25 percent. Id. at 24.

Since the mean-annual flood at a particular location on a
stream is measured in cubic feet per second, the corresponding
points to which the water extends on each side of the stream
may then be determined.

These points will be beyond (or wider than) the points
designating the "ordinary high-water mark" since the high-
water mark, as prescribed by the Tilden case, is determined
by examining beds and banks and ascertaining where the
presence and the action of the water are so common and usual,
and so long continued in all ordinary years, as to mark upon
the soil of the bed a character distinct from that of the
banks, in respect to vegetation, as well as respects the nature
of the soil itself.

The "ordinary high-water mark" dates back to 1845 when the state,
by virtue of its sovereignty, upon being admitted to the Union,
became the owner of, and, unless lawfully conveyed or granted,
still owns the beds of all navigable waters. The navigable
waters include lakes, rivers, bays, or harbors, and all waters
capable of practical navigation for useful purposes, whether
affected by tides or not, and whether the water is navigable
or not in all its parts toward the outside lines or elsewhere,
or whether the waters are navigable during the entire year or
not. Martin v. Bush, 112 So. 274, 283 (S. Ct. 1927).

In the Martin case the court went on to state:

"In flat territory or because of peculiar conditions,
there may be little if any shore to navigable waters,
or the elevation may be slight and the water at the
outer edges may be shallow and affected by vegetable
growth or other conditions, and the lines of ordinary
high-water mark may be difficult of accurate ascertain-
ment; but, when the duty of determining the line of
'high-water mark is imposed or assumed, the best
evidence attainable and the best methods available
should be utilized in determining and establishing the
line of true ordinary high-water mark, whether it is
done by general or special meandering or by particular
survey of adjacent land .

I realize the above will give little comfort, but there is
one bright spot in all of this. The Courts have held that
whenever the lines of "ordinary high-water mark" are duly
explained and established by competent authority, that line
should be regarded as the true line, unless it is impeached
for fraud or mistake. Adkins, Florida Real Property Law
Section 88.02, and Martin v. Busch (1927) 93 Fla. 535, 112
So. 274.

Sincerely,

LMB/gw L. M. Blain

January 2, 1979

MEMORANDUM

TO: LMBA

FROM: RMB

RE: Extent of SWFWMD jurisdiction over works of the
District -- determination of the boundary between
public and private land ownership

The line separating the riparian owner's upland from the pub-
lic's bottomland has been determined in Florida to be the
ordinary high-water mark. Tilden v. Smith, 94 Fla. 402, 113
'o. 708 (1927); see F. Maloney, S. Plager & F. Baldwin Water
Law and Administration (1968). It is the line to which, but
not beyond which, private ownership of the bed underlying the
water can extend. F. Maloney at 67.

The location of the ordinary high-water mark is determined
from the line to which high water ordinarily reaches. The
Supreme Court of Florida adopted the following definition of
the ordinary high-water mark:

In the case of fresh water rivers and lakes--
in which there is no ebb and flow of the tide,
but which are subject to irregular and occa-
sional changes of height the high-water
mark, as a line between a riparian owner and
the public, is to be determined by examining
the bed and banks, and ascertaining where the
presence and action of the water are so common
and usual, and so long continued in all ordinary
years, as to mark upon the soil of the bed a
character distinct from that of the banks, in
respect to vegetation, as well as respects the
nature of the soil itself.

The high-water mark on fresh-water rivers is
not the highest point to which the stream rises
in times of freshets, but is the 'line which the
river impressed upon the soil by covering it for
sufficient periods to deprive it of vegetation and
destroy its value for agriculture.'

Dow v. Electric Co., 69 N.H. 498, 45 A. 350. These definitions

Memorandum to LMB
January 2, 1979
Page 2

demonstrate that the high-water mark is a product of a constant,
sustained flow, resulting from the regular and continuous action
of the stream. It is not the line reached by the water at flood
stages, nor is it the line ordinarily reached by annual swellings
of the stream in a wet season. F. Maloney at 68.

The ordinary high-water mark, therefore, is clearly distinguishable
from the line of mean annual flood. "Flood" and "flood waters"
are defined as "waters above the highest line to the ordinary
flow of the stream." 34 Fla. Jur. Waters and Watercourses 553.
The mean annual flood is found by measuring and recording the
annual floods of a particular watercourse over a given interval
of time. This data is weighed against known topographic features
and a curve is constructed. A recurrence interval is determined
by the "average interval of time within which a flood of a given
magnitude will be equaled or exceeded once." U. S. Geological
Survey Water Supply Paper 1543-A at 5. The "mean annual flood"
is then defined as "the flood having a recurrence interval of
2.33 years." Id. Twelve years of record are required to define
the mean annual flood within 25%. Id. at 24.

Since the mean annual flood at a particular location on a stream
is measured in cubic feet per second, the corresponding points
to which the water extends on each side of the stream may then
be determined.

Although the ordinary high-water mark may be difficult to
accurately ascertain, the Florida Supreme Court has stated
that the best evidence attainable and the best methods available
are to be utilized in determining and establishing the mark,
whether done by general or special meandering or by particular
survey of adjacent land. Martin v. Busch, 112 So. 274, 283 (Fla.
1927). Whenever the line is duly explained and established by
competent authority, it is to be regarded as the true line
unless impeached for fraud or mistake. Adkins, Florida Real
Property Law 88.02; Martin v. Busch, supra. Detailed instruc-
tions for ascertaining the high-water mark are contained in
the Manual of Surveying Instructions for preparing the United
States Government Survey, excerpted in Maloney's book. F.
Maloney at 68.

The administrative rules recognize the limitation of public
ownership to the ordinary high-water mark. In declaring
certain "Works of the District," the District has stated the
extent of such works to be the natural floodway and tributaries,
ct :Inecting channels, canals, and lakes. Fla. Admin. Rules
16J-1.03. "Tributaries" has been defined to include contri-
buting streams and other watercourses upstream "to the point
where water usually begins to flow in a regular channel" or

Memorandum to LMB
January 2, 1979
Page 3

"to the point where the lines of ordinary high water marks
converge, whichever extends the farthest up-gradient." F.A.R.
16J-1.002. Either alternative statement of the extent of a
tributary limits it to the regular flow of water and does not
(necessarily) extend to the same point as the mean annual flood
level. The outside boundaries of the ordinary high-water mark
may not extend quite as far as the mean annual flood level
since the mean annual flood levels are calculated based upon
the height and frequency of flood levels without regard to
duration, while the ordinary high-water mark is affected more
by duration than by infrequent height.

The naps you requested on August 22, 1973 are enclosed. You will note at
various points on the map that the nean annual flood (IIAF) elevation has
been marked in red. -

A permit is required from this office for all types of work below the
ordinary high water level of a lake or stream which is a 'Work of the
District". For easy reference, we use the mean annual flood as being
equivalent to the ordinary high water level. Present policy is to pro-
hibit the placement of fill or dwelling structures within the area of
the ordinary high water.

In regards to land development, we suggest that you consider the following:

1; Building construction not to take place on land flooded by the
25-year flood.

2. Land fill not be placed below an elevation flooded by the 10-year
flood.

3. Land lying between the limits of the 10-year and 25-year flood
be used for building construction only If:

(a) A retention area of equal water storage to that filled Is
created on the property.

(b). No especially unique hydrologic or ecolonic areas are filled.

(c) The property is filled to at lu:ast the elevation of the 25-
year flood. (Hlllsborough County mny require fill elevations
for greater flood frequency.)
4. Drainage considerations:

(a) afterr level in the shallow, water-table aquifer should not

Mr. Edmund G. Correla
August 31. 1973 Page Two

be lowered below an average level.

(b) Amount or rate of runoff that existed on the property prior
to development should not be changed.

(d) Drainage plan should include utilization of cypress heads as
green areas and as natural water retention basins. In addition
to these natural retention basins, other water retention basins
should be considered within the property.

(e) Drainage into tidal waters should have adequate control
structures to prevent salt water intrusion.

Enclosed are copies of Chapter 16CB-1 and 16CC of the Florida Adinnistrative
Code. Chapter 16CB-1 explains the permit system and defines and designates
many of the water areas presently classified as a "W1ork of the District".
Chapter 16CC explains drilling regulations and water use regulations.